Senior judges complained they were not consulted on Judicial Appointments Bill

The Four Courts, Dublin. Senior judges including the President of the High Court, Mr Justice Peter Kelly, have been unusually vocal in their opposition to the legislation. Photograph: Chris Maddaloni/Collins

Senior members of the judiciary wrote to a European anti-corruption organisation complaining they were not properly consulted by the Government about the proposed new system for appointing judges.

Under the Judicial Appointments Commission Bill, judges will be selected by a body made up of five judges, three lawyers including the attorney general, and nine lay-members. The chief justice will be a member of the commission but will not be its chairperson.

The lay members will be selected by the Public Appointments Service. The commission will select a shortlist of judges from which the Cabinet will pick from for positions on the bench.

The controversial Bill has been championed by Minister for Transport Shane Ross but is being steered through the Oireachtas as a justice matter by Minister for Justice Charlie Flanagan.

It has attracted criticism from the start from judges and Opposition politicians who allege it erodes judicial independence.

Opposition

Senior judges such as the President of the High Court, Mr Justice Peter Kelly, have been unusually vocal in their opposition to the legislation.

In March, Attorney General Séamus Woulfe branded the Bill “a dog’s dinner” while former minister for justice Alan Shatter last week called it the worst piece of legislation he has seen in 30 years of politics.

A report by the Group of States against Corruption (Greco), which was published by the Government on Thursday afternoon, outlines several concerns about the Bill relating to the risk of political interference in judicial appointments.

In response, Mr Flanagan insisted the judiciary will be strongly represented in the recruitment process.

‘Significant concerns’

The Greco report outlined “significant concerns” that judges would be in the minority on the commission.

It noted the lay majority will be accountable to the Oireachtas, therefore eroding the independence of the judiciary.

“Greco questions if this move is in line with European standards which, in situations where final judicial appointments are taken by the executive, calls for an independent authority drawn in substantial part from the judiciary to be authorised to make recommendations or opinions prior to such appointments.”

It urged the Government to reconsider these provisions “to reflect European standards, aiming at securing judicial independence”.

Greco said it had received submissions from Chief Justice Frank Clarke, Mr Justice Kelly and the heads of all other court divisions opposing the Bill.

European standards

The judges submitted the Bill was not in line with European standards and had not been subject to in-depth consultations with the judiciary despite Government claims to the contrary.

In response, Mr Flanagan said “there will be a very strong judicial presence on this body, along with a lay majority of suitably qualified and carefully selected individuals”.

He said the presence on the commission of the Chief Justice and presidents of the court divisions “will represent a substantial judicial representation on this body”.

The legislation is making slow progress. It has completed its passage through the Dáil and is before the Seanad where the report or late-stage debate has to date taken more than 12 hours with less than a quarter of the more than 100 amendments dealt with.

The Seanad is expected to sit next Monday to further consider the Bill.

Summer recess

On Thursday afternoon, Taoiseach Leo Varadkar said “the plan” was to have the Bill passed before the summer recess.

He also defended the legislation saying: “We disagree with that assessment because the lay people that are appointed to the judicial appointments commission will be appointed in a transparent manner through the public service which really means that there won’t be undue political interference.”

The Greco report also states Ireland has failed to fully implement anti-corruption recommendations in eight other areas. Some of these, such as the need for judicial training and a judicial council, will be addressed by the legislation currently before the Oireachtas.

‘Globally unsatisfactory’

Because of the failures, Greco found Ireland’s compliance rate was “globally unsatisfactory”. In a statement Mr Flanagan said he was disappointed more progress was not made this year and pointed to several anti-corruption measures taken by Government including the passage of the Justice (Corruption Offences) Act 2018 and the establishment of a Garda anti-corruption unit.

The Association of Judges of Ireland welcomed the Greco report and called “for a reconsideration of the proposed measure”.